Mohamed Shouffee bin Adam v Public Prosecutor

1 On 24 December 2012, the appellant was stopped while driving through the Woodlands Checkpoint into Singapore and his car was inspected. Large quantities of controlled drugs were found in various compartments. He was arrested and later taken to his apartment in Pasir Ris where more drugs were found. He also admitted consuming “Ice” on the day he was arrested.

2 In the District Court he pleaded guilty to four offences under the Misuse of Drugs Act (Cap 185) and was sentenced as follows:

Charge (DAC No.)

Misuse of Drugs Act section

Offence

Imprisonment sentence

047817/2012

s 7 punishable under s 33(1)

Importation of 139.3g of methamphetamine, a Class A controlled drug

12 years

018135/2013

s 8(a) punishable under s 33(1)

Possession of 6.47g of methamphetamine, a Class A controlled drug

2 years

018138/2013

s 8(a) punishable under s 33 (1)

Possession of not less than 30 tablets of nimetazepam, a Class C controlled drug

6 months

018140/2013

s 8(b)(ii) punishable under s 33A(1)

Consumption of methamphetamine, a specified drug

5 years

3 A further eight charges were taken into consideration for the purposes of sentencing.

4 The District Judge was bound by statute to run at least two sentences consecutively and she chose for this purpose the two heaviest sentences, of 12 and 5 years’ imprisonment respectively, for a total of 17 years’ imprisonment. There were four main reasons advanced by the District Judge for doing so: the appellant had speedily relapsed into drugs despite previous stints in rehabilitation; he had a pivotal role in importing drugs and making them available to abusers in Singapore; he had imported substantial quantities of controlled drugs; and the two other sentences not chosen were in relation to offences that could be said to be part of and connected to the offence for which the sentence of 12 years’ imprisonment was imposed.

5 The appellant appealed to the High Court against his sentence on the ground that it was manifestly excessive.

Decision

6 The High Court allowed the appeal and ordered the sentences for DAC 47817/2012 (12 years) and DAC 18138/2012 (six months) to run consecutively, for a reduced sentence of 12 years and six months’ imprisonment.

7 In doing so, the High Court laid down certain principles in relation to a sentencing judge’s discretion in choosing which of multiple sentences should be ordered to run consecutively.

8 The two main principles were the one-transaction rule, and the totality principle.

9 The one-transaction rule contemplates that where two or more offences are committed in the course of a single transaction all sentences in respect of those offences should be run concurrently rather than consecutively. This was a rule that should be applied flexibly and with common sense. Although it was often helpful to have regard to factors such as whether the offences were proximate in time, the judge retained the discretion to impose consecutive sentences for distinct offences even if these related to the same transaction. This would be appropriate to give effect to particular sentencing interests such as that of deterrence or to adequately capture the enhanced culpability of the offender.

10 In any case the aggregate sentence had to be longer than the longest individual sentence. The judge was also to ensure that the aggregate sentence is proportionate and adequate with regard to the totality of the criminal behaviour of the offender. In undertaking this assessment, the court should not input aggravating factors that had already been taken into consideration when determining the individual sentences.

11 The sentencing judge should then apply the totality principle, which was a rule of limitation used as a last check to assess whether the overall sentence was substantially above the normal sentence for the most serious individual offence, or was crushing in the circumstances.

12 The High Court said that the District Judge erred in the application of these principles to the facts.
13 The appellant had not speedily relapsed into drugs because his record showed a nine-year drug and crime free hiatus before he began consuming and importing drugs again from 2010.

14 The evidence did not indicate that the appellant had a pivotal role in importing drugs and making them available to abusers in Singapore; the facts showed that he was a courier who had undoubtedly committed the offence of importing drugs into Singapore. While this was a serious offence, this was reflected in the substantial sentence of 12 years’ imprisonment that had been imposed. But it was inherent in the offence of importation that the offender made drugs available to abusers in Singapore and that was why it resulted in a substantial sentence of imprisonment. It was wrong to then consider the same fact again as an aggravating factor to warrant further enhancing the aggregate sentence by combining the longest sentences on this ground.

15 The High Court held that while substantial quantities of drugs were involved, this factor also had already been taken into account in the calibration of the appropriate individual sentence and could not be considered again in deciding which of the individual sentences should be run consecutively.

16 Finally the High Court held that it was incorrect to say that only the consumption and importation charges were not part of the same transaction. The charge for possession of nimetazepam was also a distinct offence because it was for a different drug which was in any case found in the appellant’s apartment and not in the car.

17 Applying the principles it had laid down, the High Court considered that in this case it was bound by statute to run two sentences consecutively. One of them had to be the importation charge so as to ensure that the aggregate sentence was longer than the single longest sentence. The charge for possession that the District Judge chose resulted in an aggregate sentence that was excessive and crushing in the circumstances. The nimetazepam possession charge was distinct and not part of the same transaction as the importation charge. Choosing this charge resulted in an aggregate sentence of 12 years and six months’ imprisonment which, the High Court found, was just and proportionate in the circumstances. In this the High Court had regard to various considerations including the appellant’s past record, which revealed that the longest previous term of imprisonment he had undergone was for 15 months, and the lengthy period when he had remained drug and crime free which indicated that there were reasonable prospects for reform.

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.